Civil justice reform, which is sometimes referred to as “tort reform,” is not addressed in any health reform bill now being considered by Congress. As a matter of fact, civil justice reform is rarely being discussed even though it should be a critical component of every discussion and in every legitimate health reform bill.
Physicians understand its importance. And so do the American people. Many are beginning to wonder why it’s not in any bill.
Howard Dean, former chairman of the Democratic National Committee, at a town hall meeting in Virginia last week said, “Tort reform is not in the bill because the people who wrote it did not want to take on the trial lawyers. And, that is the plain and simple truth.”
Unfortunately, the “plain and simple truth” is that Democratic leaders in Congress and President Obama are selling out the doctors to pay off the trial lawyers.
In a recent poll, 90 percent of physicians agreed that health reform will not succeed in bringing about substantive reform without addressing tort reform. Sermo, an online community of over 100,000 physicians, reports that while reasonable people might disagree on the specifics of tort reform, the fundamental principle remains that defensive medicine is a byproduct of the current tort system.
The “plain and simple truth” is that leaving the tort system “as is” ignores more than $200 billion in potential savings annually in health care. If the fundamental driving force behind any national health reform proposal is improving care and reducing costs, tort reform should be contained in every rational approach to health reform.
Defensive medicine is one of the largest contributors to wasteful spending, and it can manifest in many forms: unnecessary CT scans, x-rays, MRIs, cardiac testing and inappropriate hospital admissions. A 2005 survey in the Journal of the American Medical Association found that 93 percent of doctors reported practicing defensive medicine. These unnecessary and expensive tests and procedures are not ordered to advance the care and treatment of a patient or help the physician diagnose a medical problem. These tests and procedures are ordered exclusively to protect a physician from a potential and likely frivolous lawsuit.
In a recent speech before the American Medical Association, even President Obama said that doctors shouldn’t “feel like they are constantly looking over their shoulder for fear of lawsuits.” The president recognized that defensive medicine is “a real issue” but there is nothing in the bill to protect physicians from frivolous lawsuits. And, there is nothing in the bill to help stop defensive medicine.
While the White House and the Democratic leaders in Congress don’t want “to take on the trial lawyers,” they are apparently willing to fight with the doctors, the hospitals, the drug companies, the health insurance industry and even the American people on health reform. But they feel compelled to placate to the trial lawyers? Protecting trial lawyers at the expense of physicians is not in the best way to address health reform and it is not in the best interest of the American people.
At the Center for Health Transformation, we have developed several solutions which would advance patient safety and provide for fair and effective compensation for individuals who have legitimate claims. Our solutions establish accountability and encourage the disclosure of adverse medical events so future medical errors can be avoided.
For example, we believe that physicians should be shielded from liability if they demonstrate the use of clinical best practices in the care and treatment of patients. Shielding physicians from liability when they use best practices would reduce defensive medicine and minimize the loss of competent health professionals driven out by the high cost of litigation insurance.
We also support the creation of specialized health courts to address medical malpractice cases as a rational civil justice reform. Even some Democrats have rallied around the health court solution. Former Sen. Bill Bradley (D-N.J.), in a recent New York Times column, said “Malpractice tort reform can be something as commonsensical as the establishment of medical courts – similar to bankruptcy or admiralty courts – with special judges to make determinations in cases brought by parties claiming injury.”
We believe it’s time to stop selling out the doctors to pay off the trial lawyers. The president must include civil justice reform in any successful health reform proposal.
Former House Speaker Newt Gingrich is the founder of the Center for Health Transformation. Wayne Oliver is director of the Center’s civil justice reform project.
By: Newt Gingrich and Wayne Oliver
Posted by: Scott W. Yates, MD, MBA, MS, FACP
